Citation Nr: 1001123
Decision Date: 01/07/10 Archive Date: 01/15/10
DOCKET NO. 96-00 512 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in San Diego,
California
THE ISSUES
Entitlement to compensation benefits under the provisions of
38 U.S.C.A. § 1151 for claimed left and right knee disorders.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
M. Harrigan, Associate Counsel
INTRODUCTION
The Veteran had active military service from December 1970 to
June 1971.
This matter comes before the Board of Veterans' Appeals
(Board) from a July 1995 rating decision of the Department of
Veterans Affairs (VA) Regional Office (RO) in Oakland,
California, which denied entitlement to compensation under
the provisions of 38 U.S.C.A. § 1151 for additional left knee
disability as a result of VA hospitalization and surgery in
July 1977. In an April 1998 rating decision, the San Diego
RO denied compensation under the provisions of 38 U.S.C.A. §
1151 for a right knee disorder as secondary to a left knee
disorder. In June 2000, the Board remanded the claims to the
RO for development.
In January 2005, the Board remanded the issue of entitlement
to service connection for a neck disorder, for a back
disorder, and for a psychiatric disorder, and entitlement to
compensation benefits under the provisions of 38 U.S.C.A. §
1151 for claimed left knee, right knee and back disorders.
In a February 2008 letter to the Seattle, Washington, RO, the
Veteran indicated agreement with the denial of all claims
except the left knee and the psychiatric disorder.
Subsequently, the Veteran's representative argued for service
connection for a psychiatric disorder and for compensation
benefits under the provisions of 38 U.S.C.A.§ 1151 for left
and right knee disabilities. The Board deems the Veteran's
and his representative's written communications to be a
valid, timely withdrawal of the appeals for service
connection for a neck disorder, a back disorder, and
compensation under the provisions of 38 U.S.C.A.§ 1151 for
claimed back disorders. See 38 C.F.R. § 20.204. The appeal
for service connection for a psychiatric disorder and
38 U.S.C.A. § 1151 compensation for both knees remains on
appeal.
In November 1996 the Veteran requested a hearing. The RO
notified the Veteran that a hearing was scheduled for
February 2007. The Veteran failed to report for the hearing,
although the notification letter has not been returned by the
United States Postal Service as undeliverable. The Veteran
has not explained his failure to report nor has he requested
rescheduling of the hearing. Therefore, the Board deems that
hearing request to be withdrawn. See 38 C.F.R. § 20.702(d)
(2009). In October 1998, the Veteran requested two hearings;
however, in April 1999, he withdrew those requests.
In a October 2008 decision, the Board granted service
connection for an acquired psychiatric disorder and denied
entitlement to compensation benefits under the provisions of
38 U.S.C.A. § 1151 for claimed left and right knee disorders.
The Veteran appealed the Board decision to the United States
Court of Appeals for Veterans Claims (Court). In a July 2009
Order, which granted a July 2009 Joint Motion to Remand
(Joint Remand), the Court vacated and remanded that part of
the Board's decision which denied entitlement to compensation
benefits under the provisions of 38 U.S.C.A. § 1151 for
claimed left and right knee disorders.
The appeal is REMANDED to the agency of original jurisdiction
(AOJ) via the Appeals Management Center (AMC), in Washington,
DC. VA will notify the appellant if further action is
required.
REMAND
The Veteran was hospitalized in 1977, following a subluxation
of the left patella. He reported approximately nine previous
subluxations of the left patella and was noted to have
congenital bilateral patellar subluxations. He underwent
surgery which entailed a Trillat-Elmslie tendon repair and a
medial vastus advancement, and two fixation screws were
implanted in his knee. Following surgery, he continued to
report pain on walking and standing.
The Veteran has consistently attributed his additional left
knee disability to the two screws that were placed in his
left knee during his 1977 VA surgery and never removed. He
has indicated that physicians have opined that the screws
should have been removed long ago.
Effective October 1, 1997, 38 U.S.C.A. § 1151, relating to
benefits for persons disabled by treatment or vocational
rehabilitation, was amended by Congress to require a showing
of negligence for recovery under § 1151. In a precedent
opinion, VA's General Counsel held that all claims for
benefits under 38 U.S.C.A. § 1151, that were filed before
October 1, 1997, must be adjudicated under the code
provisions as they existed prior to that date. See
VAOPGCPREC 40-97. For claims filed prior to October 1, 1997
under 38 U.S.C.A. § 1151, the only requirement was that
additional disability or death was "the result of" VA
hospital care, medical or surgical treatment, or examination.
As such, the Veteran is not required to show fault or
negligence. See generally Brown v. Gardner, 513 U.S. 115
(1994); 38 C.F.R. § 3.358 (2009) (applicable to 38 U.S.C.A. §
1151 claims received prior to October 1, 1997). In the
present case, the Veteran initially requested compensation
under § 1151 in May 1995. Therefore, the provisions of 38
C.F.R. § 3.358 apply.
In determining whether additional disability exists, the
physical condition immediately prior to the disease or injury
upon which the claim for compensation is based will be
compared with the subsequent physical condition resulting
from the disease or injury. Compensation will not be payable
for the continuance or natural progress of diseases or
injuries for which the hospitalization or treatment was
authorized, unless VA's failure to exercise reasonable skill
and care in the diagnosis of treatment of the disease or
injury caused additional disability or death that probably
would have been prevented with proper diagnosis or treatment.
38 C.F.R. § 3.358(b).
It is also necessary to show that additional disability
actually resulted from such disease, or that an injury or an
aggravation of an existing disease or injury was suffered as
a result of hospitalization or medical treatment and is not
merely coincidental therewith. The mere fact of aggravation,
alone, will not suffice to make the disability compensable in
the absence of proof that it resulted from disease or injury
or an aggravation of an existing disease or injury suffered
as a result of training, hospitalization, medical or surgical
treatment, or examination. 38 C.F.R. § 3.358(c)(1), (2).
Compensation is not payable for the necessary consequences of
medical or surgical treatment properly administered with the
express or implied consent of the Veteran. "Necessary
consequences" are those which are certain to result from, or
were intended to result from, the examination or medical or
surgical treatment administered. 38 C.F.R. § 3.358(c)(3).
VA regulations provide that informed consent is the freely
given consent that follows a careful explanation by the
practitioner to the patient of the proposed diagnostic or
therapeutic procedure or course of treatment; the expected
benefits; reasonably foreseeable associated risks,
complications, or side effects; reasonable and available
alternatives; and anticipated results if nothing is done.
See 38 C.F.R. § 17.32(c) (2009). In addition, signature
consent is required for all diagnostic and therapeutic
treatments or procedures that: (i) Require the use of
sedation; (ii) Require anesthesia or narcotic analgesia;
(iii) Are considered to produce significant discomfort to the
patient; (iv) Have a significant risk of complication or
morbidity; (v) Require injections of any substance into a
joint space or body cavity; or (vi) Involve testing for Human
Immunodeficiency Virus (HIV). The informed consent process,
including signed consent form, must be appropriately
documented in the medical record. 38 C.F.R. § 17.32(d)
(2009).
In the Joint Remand, the Court noted that, in its October
2008 denial of the Veteran's claim for entitlement to
compensation benefits under the provisions of 38 U.S.C.A. §
1151 for claimed left and right knee disorders, the Board
relied on a November 2007 VA opinion in which the examiner
concluded that the condition of the appellant's left knee was
not the result of natural progression of the knee disability,
but was a "necessary consequence" of VA surgery and
hospitalization in July 1977. The examiner noted a
"definite disability" of the left knee and diagnosed the
Veteran with left knee status post patellar tendon
realignment procedure with degenerative arthritis and
residual two-screw fixation of the proximal tibia. The Court
noted that both the Board and the RO had denied the Veteran's
claim on the basis that there was no additional disability;
however, it was not clear from the November 2007 VA opinion
whether the "definite disability" of the Veteran's left
knee is attributable to the July 1977 VA surgery, or whether
it is due to the Veteran's preexisting congenital condition.
In addition, the Court indicated that the examiner did not
comment on whether any additional disability is attributable
to the failure to remove the screws subsequent to the
procedure as asserted by the Veteran.
Thus, a remand is necessary to obtain another VA opinion
which specifically addresses whether there is additional
disability due to the VA's July 1977 surgery for the
Veteran's left knee condition or to the failure to remove the
screws subsequent to the procedure.
With respect to the Veteran's right knee, the Veteran has
claimed that his right knee disorder is secondary to his left
knee disorder. The RO did not inform the Veteran about what
he would need to show to establish service connection on a
secondary basis due to aggravation. When aggravation of a
Veteran's nonservice-connected condition is proximately due
to or the result of a service-connected condition, the
Veteran shall be compensated for the degree of disability
over and above the degree of disability existing prior to the
aggravation. Allen v. Brown, 7 Vet. App. 439 (1995). 38
C.F.R. § 3.310 (2009). The Veteran must be provided with
this notice.
In addition, if it is found that there is additional
disability due to the VA's July 1977 surgery for the
Veteran's left knee condition or to the failure to remove the
screws subsequent to the procedure, then the Veteran should
be afforded a VA orthopedic examination to determine whether
his right knee disability is proximately caused by or is
aggravated by his left knee disability.
The Board notes that the Veteran has submitted additional
evidence subsequent to the most recent issuance of a
supplemental statement of the case. In his 90-Day Letter
Response Form, dated on October 6, 2009, the Veteran
indicated that he wished for his case to be remanded to the
AOJ for review of this newly submitted evidence. The AOJ
should take this new evidence into consideration in
adjudicating the Veteran's claim.
Accordingly, the case is REMANDED for the following action:
1. The AOJ should make arrangements for
the Veteran's claims file to be provided
to an examiner in order to render an
opinion as to whether there was
additional disability which resulted from
the VA care provided to the Veteran in
July 1977 and his left and right knee
disorders. The claims file, this remand
and treatment records must be made
available to the examiner for review of
the pertinent evidence, and the report
should so indicate.
If an additional VA examination is
necessary in order for the examiner to
render requested opinions, such
examination should be scheduled and
conducted.
The examiner should first offer an
opinion as to whether the Veteran's July
1977 VA medical care/surgery caused
additional left knee disability. In
rendering this opinion, the examiner
should discuss the Veteran's left knee
condition immediately prior to the July
1977 VA medical care/surgery and his
subsequent left knee condition resulting
from the care. If additional disability
is found, the examiner should opine as to
(1) whether such additional disability is
the continuance or natural progress of
diseases or injuries for which July 1977
VA medical care/surgery was authorized,
(2) whether the additional disability is
due to VA's failure to exercise
reasonable skill and care in the
diagnosis of treatment of the disease or
injury which could probably have been
prevented with proper diagnosis or
treatment, to include failure to remove
the screws subsequent to the procedure,
(3) whether such additional disability is
actually the result of the 1977 VA
medical care/surgery or an aggravation of
an existing condition or is merely
coincidental with the 1977 VA medical
care/surgery and (4) whether the
additional disability is a necessary
consequence of the 1977 VA medical
care/surgery.
In addition, the examiner should note
whether there are consent forms in the
claims file for the July 1977 procedure
and, if so, whether they adequately
explain the proposed diagnostic or
therapeutic procedure or course of
treatment; the expected benefits;
reasonably foreseeable associated risks,
complications, or side effects;
reasonable and available alternatives;
and anticipated results if nothing is
done. Finally, the examiner should opine
whether the Veteran's current left knee
disability was an event not reasonably
foreseeable and whether the risk of that
event was the type of risk that a
reasonable health care provider would
have disclosed in connection with the
informed consent.
If it is found that there is additional
disability due to the VA's July 1977
surgery for the Veteran's left knee
condition or that there is any additional
disability attributable to the failure to
remove the screws subsequent to the
procedure, and that the proximate cause
of the additional disability is either
carelessness, negligence, lack of proper
skill, error in judgment, or a similar
instance of fault on the part of the VA
in furnishing the medical or surgical
treatment or is an event not reasonably
foreseeable, then the Veteran should be
afforded a VA orthopedic examination to
determine whether his right knee
disability is proximately caused by or is
aggravated by his left knee disability.
If the etiology of the Veteran's
disorders is attributed to multiple
factors/events, the examiner should
specify which symptoms/diagnoses are
related to which factors/events. The
examiner should clearly outline the
rationale and discuss the medical
principles involved for any opinions
expressed. If the requested medical
opinion cannot be given, the examiner
should state the reason why.
2. After completion of the above, the
AOJ should readjudicate the appellant's
claims, taking into consideration the
provisions of 38 C.F.R. § 3.358. If any
determination remains unfavorable to the
appellant, he and his representative
should be provided with a supplemental
statement of the case. The appellant
should be afforded an opportunity to
respond before the case is returned to
the Board for further review.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court
of Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009).
_________________________________________________
A. BRYANT
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2009).